by Ross, Hamish
The appeal against Judge Thompson was heard by Judge Robertson. He partly accepted that Hinga Norman could give testimony to the TRC, but it had to be through a sworn affidavit, supplemented by an in camera meeting and not broadcast. Hinga Norman refused those conditions: unless he was allowed to appear in public and make his statements like the others, he would not make a written statement.
Judge Thompson’s ruling and Judge Robertson’s decision on appeal have been subsequently critiqued in an academic law journal on the basis that the two bodies, TRC and SCSL, were intended to have complementary roles – the SCSL was not the superior body, that while it had primacy over the courts in Sierra Leone, it was contentious to assume it had primacy over the TRC. Furthermore, Judge Thompson’s view that Hinga Norman’s ‘centrality’ implied that he was in the category of perpetrator, thereby compromising his right of assumption of innocence, has also been challenged. That he was a central figure in the conflict is clear, but that this was interpreted by the Judge as putting him in the category of perpetrator, suggests, it has been argued, a pre-existing presumption of guilt.
Viewed in this light, the result of Judge Thompson’s decision is to inadvertently bring into question the independence and impartiality of the SCSL. Without further evidence beyond what was present here, such as facts evincing the coercion of the Accused or a legal requirement that the Accused testify against himself at the TRC, this disposition should not be followed in the future.31
Fate, it would seem at that point, was conspiring against him and his fellow detainees. Sierra Leone was the first (and to date, only) country to have both a Truth and Reconciliation Commission and a Special Court operating at the same time, and the implications of their interacting had not been sufficiently thought through in advance. In hindsight, a common belief is that the TRC was not strong enough to stand up to the Special Court, but an articulation mechanism between the two should not have had to rely on something as tenuous as the leading personalities in the TRC.
Given the robust tone of the papers that would flow from him in prison, it is most unfortunate that Hinga Norman did not contribute to the truth and reconciliation process; he would have given unique insight to the TRC on the operation of the CDF, and would certainly have had something to say about one damning statement against him. It is contained in paragraph 839 of the TRC final report, and concerns an attack by Kamajors on a bus during the Black December campaign, a campaign agreed on by the Sierra Leone Government in exile. The attack took place on 2 November 1997, and at the time, it was reported that there were atrocities. An anonymous survivor of the attack stated to the TRC that he was travelling from Kenema to Bo in a Government bus which was attacked. Afterwards the Kamajor commander made a call on his mobile,
And communicated to Hinga Norman, who was in Monghere [sic] at that moment. According to their conversation, I understood that Hinga Norman gave them the order to execute everybody.32
Of course it did not matter where a decision by phone was taken, whether it was Mongeri or Mombasa, but the survivor’s insistence on pinpointing Hinga Norman in Mongeri (his home village) is interesting, because, as we saw earlier, in the letter he wrote to Fred on 8 November 1997, requesting supplies to be dropped off at Base Zero on their next flight with Bokkie, Hinga Norman explained, ‘we mistakenly dropped a bag of mine at Gendema on our way on Wednesday [5 November].’33 So the attack on the bus took place on 2 November; but on 5 November, Hinga Norman was in Gendema; the means by which he got about in Sierra Leone was by helicopter. As Fred put it, the claim, ‘was a lie because we moved the Chief and his people by air.’ However, the survivor’s account gets even more interesting; and it is a pity that the TRC short-changed him by concealing his identity: he could have made a fortune for himself, his family and supported his community by performing for the media the accomplishment hitherto achieved solely by the oozlum bird that flew round and round in ever decreasing circles until it disappeared into a place where the sun doesn’t shine − for he concluded his statement.
I was the last person in the men’s row. As they were about to kill me, I used mystical power and disappeared.34
Despite the legal ruling and Hinga Norman’s refusal to contribute to it under conditions different from those accorded to the president, in the TRC final report there is a paragraph (673) written in the first person, and obviously in Hinga Norman’s words (an extract of which appeared earlier in chapter four in connection with the May 1997 coup). There is no introduction to it or explanation for its being there. However, the source text from which it was taken is a statement he wrote in his notebook in prison. It is the longest entry in the notebook, and is an address he makes to be presented to the Special Court, not the TRC. He introduces the statement as, ‘Pursuant to Article 6: 3 of the Statute’. Paragraph 3 of the article deals with the overall responsibility of a superior.
The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he of she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators thereof.35
Following on from that heading, he wrote a first draft of a statement, laying responsibility on the president for not acting on the warnings of his deputy minister of defence that the 1997 coup was imminent. He amends his wording as he goes, but the lay out is systematic and he has clearly marshalled his thoughts; the draft reads easily with one exception. He interpolated the paragraph he numbered 3 later, after he wrote what follows it, and so he had to cram it into the margin at the top of the page. He was forced to use a shorthand that worked for him but which, for another reader, in places, is illegible. Maybe his reasoning for including it was to forestall the question, why not have a private word with his boss before confronting him in the presence of witnesses, two of whom would subsequently be executed for their part in the coup? It seems he had first spoken to him privately.
Pursuant to Article 6:3 of the Statute that Dr Ahmad Tejah Kabbah, Minister of Defence, Commander-in-Chief of the armed forces and President of the Republic of Sierra Leone, while holding positions of superior responsibility and exercising command and control over the government, armed forces and the entire nation of Sierra Leone, is responsible for the criminal acts of the armed forces in that he knew that the armed forces were about to commit such acts and he failed to take the necessary and reasonable measures to prevent such acts.
That his failure and deliberate refusal to take necessary measures to prevent such acts caused untold number of deaths, injuries to human beings (men, women and children, young and old) and destruction to public and private properties across the entire nation of Sierra Leone.
That some time in April 1997, through the assistance of some senior officer, I obtained the working parts of some dangerous military copies [?] which I gave to HE informing him of my suspicion of the Army and I told him in the event of any coup, with those parts the Army could not play havoc in the city. The [omitted] gave those parts back to the CDS and to the Chief [illegible] which were later used in the coup. After this incident, I now decided to the following in the presence of witnesses.
That in the afternoon of Friday the 16 May 1997, I Chief Samuel Hinga Norman, then Deputy Minister of Defence in the Government of Sierra Leone, obtained permission of HE to invite the following persons to his presence:
a) Dr Albert Joe Demby, former Vice President of Sierra Leone now residing in Bo, Sierra Leone.
b) Mr Teddy Williams, former Inspector General of the Sierra Leone Police – I understand he his now living in Freetown.
c) Commander A B Sesay, the former Navy Commander, now the Deputy CDS of the Sierra Leone Army at the Ministry of Defence Sierra Leone.
d) Brigadier Hassan Conteh, former CDS of the SLA. Executed by firing squad.
e) Col Max Kanga, former Army Chief of the SLA. Execut
ed by firing squad.
And in the presence of these five, I informed HE the President that there was a planned coup to overthrow the GOSL [Government of Sierra Leone] and to cause serious destruction to life and property and that the CDS and the Army Chief, Brig Conteh and Col Kanga knew about same.
HE the President said to the CDS and Army Chief, gentlemen did you hear what Chief Norman said? They said, yes sir. The President further asked, do you have anything to say? They said, no sir. The President then said, Chief Norman the gentlemen say they do not have anything to say.
I was shocked. I said, your ex [Excellency] I invited these men to tell you in their presence their involvement in a grave situation facing the nation, but I do realize you do not intend to take action to prevent their plan. Well, I am requesting Your Excellency to tell them not to execute their plan; that if they do, I, Chief Hinga Norman will join the people of Sierra Leone and we shall fight these and those who shall take part in the coup, we shall defeat them, reverse the coup, take power from their hands and restore the government and Your Excellency will be bound by the Constitution of Sierra Leone to sign their death warrant after due process of the law. Since it appears you do not believe me and you are reluctant to take the necessary action to avert this fast approaching troubles [sic], I will pray God that you survive the coup to witness eventual consequences.
We left the State house and HE never referred to the matter again until the coup struck on Sunday May 25th 1997.
Well, ladies and gentlemen, Mr Prosecutor, the President and Chief Hinga Norman who bears the greatest responsibility now that you have heard from me? Or is this matter still to be dealt by you as a Special Court decision – meaning you did not come here to prosecute the President but Chief Hinga Norman as may have been decided upon by some people at the UN?
Again, I have been charged for unlawful killings. Well people were tried in court and found [guilty] but were never allowed to appeal and were executed [a reference to those found guilty of treason after the 1997 coup was crushed].
My question Mr Prosecutor is this.
The President and his former Attorney General now Vice President of Sierra Leone on one part and Chief Norman on the other who to your honest and moral knowledge unlawfully killed in Sierra Leone?
Finally, the test of your honesty, morality and sincerity Mr Prosecutor is now at hand.
The neutrality and impartiality of the Special Court is now under test.
That if the action expected is not taken in the next seven days of this disclosure, I shall refuse to participate in this matter and shall ask my sympathizers in Sierra Leone and the world to start a non violent demonstration.
Finally, I wish to apply as at now to request another neutral organization or nation to responsibility of [sic] my detention as I do not feel safe in the hands of the Special Court officials – I am in grave fear for my life. Starting now (this very moment).36
How a shortened version of this text found its way into the TRC final report is not known.
Then, in a short, undated piece, he returns to the theme of the president’s culpability and muses on reasoning for setting up the apparatus of a Special Court.
Tejan Kabbah’s refusal to take necessary action to prevent that coup – being the Minister of Defence, the Commander-in-Chief of the Armed Forces of the Republic of Sierra Leone was immoral, unconstitutional, dishonest and to say the least reckless and criminal.
Look at the result and the consequences. Now he designed a Special Court for what? To cover up his failure or create by design a commercial activity for them [sic] in the UN to open yet another avenue for employment for their friends, relatives and contacts for 3 years.
Money which should have gone to the TRC to move with speed and recommend compensation for the victims.37
However, this entry does not seem designed to link to anything wider; it may have been for a paragraph in a letter.
A new year began in prison. By now his notebook was full. However, he had a very small pocket diary for 2004 that did not have room for extended thoughts; but he managed to write over the last day of the previous year and the first of the new year, ‘The future of this nation is hugely going to depend on pursuing: – prosecution – reconciliation.’ When accommodation was ready in Freetown, he and the other detainees were transferred to the Special Court Detention Centre there.
Peter Penfold was one of the early visitors; indeed he was flown by UN helicopter to Bonthe the previous year; and after the switch to Freetown, he came on three occasions at the end of February and the beginning of March. On the date of his first visit, Hinga Norman, giving Peter Penfold his honorary title, wrote, ‘PC [Paramount Chief] Komrabai.’ Peter Penfold had no difficulty in being allowed to visit. It was a different story when Roelf van Heerden tried.
I tried to visit him on two occasions. Firstly they, the Special Court, said I must make a booking and could not see him as a friend, within 14 days. I came back but was refused. I tried to use the influence of Neall Ellis, working for the government at that time as their gunship pilot, but still in vain. I decided to drop it as Neall Ellis told me that some politicians ‘told’ him to stay out of their politics. Neall then said to me I must drop the issue.
I can remember Fred; he would always go to serious lengths to try and make things better for Hinga Norman, especially in later days when he was locked up and it became really a political prickly pear: you didn’t know whether you should mention his name in public because they were just looking for people to interrogate and also to lock up. And it was really a messy thing. But Fred always kept straight, supporting the man. Yes I think that Fred was really a great friend of the Chief.38
The reason Hinga Norman had earlier been in contact with Roelf, then working with African Gold and Diamond SL, was because there was a gold project in his area and he wanted the area developed like other districts; he told Roelf that the mineral licence was expiring and that there was no development; he had asked him if he could find investors. But Roelf later learned that there were other government ministers with an interest in it as well and, in his view, they conspired,
to keep the Chief away from developing it as it would not bring bribe money into their pockets. It was, according to me, a corrupt government network to sideline him. He had true intentions for this development.39
No obstacles were put in Fred’s way at this stage, and he went to visit the Chief as often as he could, and responded as best the could to requests for help. For example, on 14 April, at the bottom of a page of a sheet of A4 paper, torn from a pad, on which, written in blue ink by the same hand, was a list of 15 names. At the bottom of the list, in black ink, the Chief wrote:
Fred
Please receive these names of some of the un-employeds [sic] I have around me – see what you could possibly do for them.
Many thanks in advance.
Your brother
Sam Hinga Norman
Chief Norman40
The 15 men were former members of the CDF, and they were out of work. Fred made efforts, but,
the company could not afford to recruit any more people because of shortage of funds. This was after we lost the BHPB contract because we could not maintain the safety standard required by BHPB management.
And two weeks later, the Chief ’s financial worries increased: he was supporting his family, and from now on it was going to be more difficult. He wrote to Fred.
Dear Fred
I am sure you have also heard about my replacement at the Ministry of Internal Affairs.
Please be informed and also explore the possibility of approaching the (your) organization if it could be possible to arrange the relocation of my family to some other (less expensive) address until I am released.
Please, let me hear from you on the issue at your earliest convenience.
Yours
Sam Hinga Norman41
This time something could be done – or so it appeared at first. Fred asked Mrs Norman to find accommod
ation,
I would pay the rent if it was reasonable, because if I found a place, it would cost a lot of money. We did find a nice compound with three bedrooms, but when I went to pay for it, the landlady gave the house to a tenant that was willing to pay more because they were from the UN; so we lost out. We never did find one that I could afford to pay because I was not getting paid from my own company.
Apart from his family, his legal team, friends like Peter Penfold and Fred, few of his political colleagues visited, it would seem.
Anyone who was going to visit the Special Court, your photograph had to be taken to go to the State House for them to see. That is why after my dad was arrested all the ministers refused to visit him, because when you go and visit you’ll be sacked the next day. So everyone who wanted their job refrained from going to the Special Court. All those, close party members, they all neglected to go there; no one was friends with Hinga Norman any more. As soon as you would mention his name, they would move away.42
His son, Sam, had been living in the UK since 1995; he went back home and visited his father.
We sat down. And I said, ‘Why? It’s hard for me to understand why are you here? You walk around Britain and people that do good, they have statues.’ I said, ‘You’re not the Bad Guy, you fought for the country.’ He said to me, ‘You don’t understand what life is like.’43
Although he understood what life was like, he showed in his notes no indication of being beaten; he had reserves, inner resources and the moral fibre to fight. His capacity for the former is evident to a surprising degree.
Despite not being allowed to give a statement to the TRC on the same conditions as others, in the week before Easter 2004, it becomes apparent that he was making a remarkable contribution to reconciliation among the detainees of the previously warring parties. On 4 April, he conducted the Palm Sunday mid-day service in the detention centre in cell 10; Bishop Sannoh conducted the main Palm Sunday service.44 Of the RUF leadership, Foday Sankoh had died in May 2003 while in detention, and Sam ‘Mosquito’ Bockerie, who had been on the run, was shot dead by Liberian troops during the same month; so the Interim leader of the RUF was Issa Sesay, and he was in the detention centre. It was not possible for the Special Court to indict everyone in RUF, only those in positions of power; and he,